Lange v. Wagner

Bartol, C. J.,

delivered the opinion of the Court.

At the instance of Lange, the appellant, a writ of injunction was issued by the Circuit Court for Baltimore County, prohibiting the appellee from completing the erection of a brick stable upon an alley-way, which Lange averred the appellee had no right to close, without his consent. The injunction was afterwards dissolved, and this suit was brought on the injunction bond of the appellants, to recover damages sustained by the appellee, by reason of the injunction.

The right of action is not disputed, the only questions raised by the bills of exception relate to the subject of damages and are presented in the form of exceptions to testimony, and to the rulings by the Court below upon the prayers.

These exceptions will be disposed of in the order in which they appear in the record.

First Exception.—Proof was offered that the appellee was engaged in supplying his customers with milk, and kept a number of milch-cows. . His frame stable having become somewhat out of repair, was partially torn down in the summer of 1877 and he began to erect a brick stable in its place.

In August of that year he was stopped by the injunction, which continued till the 6th day of December following ; after it was dissolved, the appellee went on to compíete the building and had it finished about the 25th of the same month. While the injunction was in force, the *320 appellee’s cows were deprived of their accustomed and proper shelter, and were more exposed to the weather.

The question propounded to the witness, and objected to hy the appellants, was “ what was the effect upon the cows, if any, in consequence of being exposed to the wet and cold weather, because you could not finish the brick stable while the injunction suit was pending?” It seems to us the question was pertinent and legal.

One of the grounds of special damage stated in the narr. was “the injury done to his cattle by exposure to the weather, requiring extra care and food and causing their flow of milk to greatly decrease.” Such damage was one of the direct consequences of the injunction, for which the plaintiff was entitled to recover. Hamilton vs. The State, 32 Md., 348 ; Lawson vs. Price, 45 Md., 124 ; B. & O. R. Co. vs. Thompson, 10 Md., 76, 88 .

Second Exception.—The evidence offered by the defendants, set out in this bill of exceptions, was clearly inadmissible, and there was nó error in excluding it. It was offered for the purpose of proving that the brick stable was built in part upon land belonging to the defendant Lange. It was not competent for the defendant to prove title to the property in this collateral way. He was concluded on that question by the decision in the injunction case. Moreover, the evidence by which it was attempted to prove title, was in itself inadmissible, the survey and measurement of the ground by Mr. Martinet, was not made in the presence, or by the authority of the plaintiff, or by any authority of law. It was made ex parte, and could not bind the plaintiff or affect his rights in any way.

Third Exception.—This was taken to the ruling by the Circuit Court upon the prayers.

By granting the plaintiff’s prayer and the fourth prayer of the defendants, the jury were instructed that they might find for the plaintiff “ in such damages, if any, as *321 shall appear from the evidence that he has actually and necessarily or directly sustained hy reason of the granting and serving of the writ of injunction. They were further instructed that actual, natural and proximate damages are such as are the direct, necessary and natural result and effect of the act complained of, and from which injury is alleged to have been sustained.”

The seventh prayer of the defendants which was granted, excluded from the computation of damages, all evidence of the rental value of the brick stable if it had been completed. These instructions we think left to the jury the question of the items and measure of damages in a way, of which the defendants have no good cause to complain.

The defendants' first prayer was properly refused, the several items or causes of damage therein enumerated and sought to he excluded from the consideration of the jury, were losses and injuries naturally resulting from the wrongful act of the defendant Lange, and coming within the terms and conditions of the bond; some of them were set forth in the declaration. The prayer in the form in which it was asked could not properly be granted.

The second, third and eighth prayers of the defendants .seem to have been intended to present the proposition that it was the duty of the plaintiff, after he was stopped hy the injunction to use reasonable diligence and care to prevent or diminish the damages and loss resulting therefrom—and that for such damage as was caused hy his own wilful acts or negligence he is not entitled to recover. The general principle that a plaintiff cannot recover for damages caused hy his own act, or to which he has contributed hy his own negligence is well settled. These prayers, however, do not distinctly present this question. They are erroneous in denying all right of recovery, whereas, the ground of defence relied on can go no farther than to mitigate or diminish the damages to the extent they may have resulted from the negligence of the plaintiff; where *322 there is evidence of such negligence. In this case we think besides the objection to these prayers, just stated, there was really no evidence of any wilful act or contributory negligence on the part of the plaintiff, whereby the damage and loss was caused or increased.

(Decided 15th July, 1879.)

The defendants’ fifth prayer was also properly refused. There was evidence of extra labor and money expended by the plaintiff to prevent injury to the cattle. It was proved that the weather-boarding which had been removed from the old stable was nailed on again; and there was also evidence that the cattle required more food, and extra care when deprived of shelter, and also that having to buy food for them in less quantities, it cost more.

The defendants were not injured by the rejection of their sixth prayer, as by granting the ninth prayer, the jury were instructed that the proceedings in the injunction case were evidence only for the purpose of showing that the injunction was issued at the instance of Lange and that it had been dissolved and for no other purpose.

Finding no error in the rulings of the Circuit Court, the judgment will be affirmed with costs.

Judgment affirmed with costs.